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Examination Under Oath

Lakeland Insurance Dispute Lawyers | Auburndale Insurance Bad Faith Attorneys

The examination under oath (EUO) is a new wrinkle to most lawyers. Although long used in property insurance claims, EUOs started to appear in auto accident litigation only recently. We now regularly see demands for EUOs in PIP and UIM claims. Between medical exams and EUOs, an insurer can require the insured to miss at least two full days from work, hire a lawyer, and spend more money that a small PIP claim is worth. Perhaps it will help to learn something about examinations under oath in the PIP and UIM context.

With no authority to guide us in this new field, how are we to handle the carrier's demands? Where should the exam be held? Must we provide documents prior to the exam? Who may be examined? Who pays for the transcript?

The Insurer Must be Prejudiced by the Insured's Failure to Comply.

What happens when the insured makes an untrue or inaccurate statement in the EUO?  Carriers argue that a misstatement of fact by an insured voids coverage. That view is far too harsh, and ignores the requirement that a breach of condition by the insured must cause prejudice to the insurer. The insurer has the burden of proving that it has suffered prejudice from its insured's breach. However, the courts will find prejudice as a matter of law for an outright failure to attend an EUO or to produce documents.

Where and When to Appear

The insured also has no duty to appear for an exam in a different county then from the site of loss. Demand for examination under oath elsewhere may be invalid.

An insurer's right to examine its insured is a privilege which may be waived by the insurer. For example, a waiver of the right to examine the insured may occur by the insurer accepting or denying liability for a claim prior to demanding an EUO. Thus, rights under the policy may be lost by waiver or estoppel. The authorities are unanimous that an insurer which breaches the policy by denying the claim, cannot later demand that its insured comply with the terms of the policy.

The Recorded Statement

We know that a recorded statement is no substitute for an exam under oath. Where the insured gave a statement, however, must the carrier provide a copy prior to the exam? Some are refusing to do so. The statement of a party or a non party to litigation is obtainable without any showing of necessity, hardship, or any showing at all. The courts seem to see such statements as the property of the maker. See, Wright & Miller, Federal Practice and Procedure, 2027 (1970) to support the view that parties have an absolute right to a copy of any statements made by the party prior to the retention of counsel. This "absolute right" cannot be defeated by withholding the statements, or delaying their production.

Call Allen & Abaray, P.A. for a Free Consultation

For legal advice on whether you need legal assistance with an Examination Under Oath call the attorneys at Allen & Abaray, P.A. One of our experienced attorneys will be happy to answer all of your questions during a free consultation.

 


The experienced Lakeland personal injury attorneys at Allen & Abaray, P.A. aggressively pursue accident injury cases throughout the state of Florida. If you or a loved one has been injured in an auto accident, truck accident, slip and fall accident, or have suffered any type of injury because of someone else's negligence, call 1-863-669-9999 today for a free consultation.

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5835 U.S. Highway 98 South   Lakeland, Florida 33812   Toll Free: 877-669-6899   Ph: (863) 669-9999   Fax: (863) 669-0699